C OF A
(CIV) NO.33 OF 1994

IN THE
LESOTHO COURT OF APPEAL

In the
matter of:

JUSTINA
MPHO KEPA APPELLANT

(duly
assisted by her husband)

AND

ANGLICAN
CHURCH OF LESOTHO 1ST RESPONDENT

LEBOHANG
KHEEKHE 2ND RESPONDENT

Held at:

MASERU

CORAM:

MAHOMED
P,

STEYN JA,

LEON JA.

JUDGMENT

STEYN JA:

In the
Court a quo Appellant applied for an order:

"1. That a rule nisi do hereby issue calling upon the

2

Respondents
to show cause, if any, on a date to be determined by this Honourable
Court why:-

1. The
   decision of Second Res­pondent of 1st June, 1993 to dismiss
   Applicant as a teacher shall not be declared to be null and
   void;

   
   

2. The
   salary of Applicant with effect from April, 1993 shall not be paid
   to Applicant;

   
   

3. Respondent
   shall not be directed to pay the costs hereof.

   
   

The rule
was granted in this form on August 10, 1993. However it was
subsequently discharged by Kheola CJ on July 6, 1994 after
full
argument was presented to him.

It is
against the latter order that Appellant appeals to this Court.

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The facts
are the following. Appellant was employed for some twenty years as a
teacher at the Rankhelepe A.C.L. Primary School (the
School). She was
dismissed by the 1st Respondent, acting through the medium of the
Second Respon­dent on the 1st of June, 1993.

The
circumstances in which she came to be dismissed relates to her
refusal to comply with a directive that she was to be transferred
to
a different primary school located at Setleketseng. In order to
determine whether her dis­missal was lawful, it is necessary
to
examine how it came about that she was transferred.

Respondents
alleged in their opposing affidavits that "there were problems
concerning (Appellant) and the school". They
go on to expand on
this allegation as follows:

Her cattle damaged crops in the school vegetable garden and when the
cattle were impounded violent incidents were reported between
her
children and the teachers. The Police had to intervene.

In March 1993 I invited the villagers to the Chief's place. I asked
them to protect the school garden. There were complaints about
Mrs.
Justina Mpho kepa and her children concerning the damage

4

to the school garden. Two teachers who lived in the school premises
asked to be transferred from the school. Some individuals were

clamouring for the transfer of Mrs. Justina Mpho Kepa.

Mrs. Justina Mpho Kepa has been a teacher at Rankhelepe's since April
1973. Her residence is near the school.

As trouble was brewing and tension mounting teachers threatening to
leave the school I had to ask Mrs. Justina Mpho Kepa to accept
a
transfer to another school. The local community seemed to have
developed a hostile attitude.

I felt the Secretary of Schools would support me. He did not approve
the transfer of Mrs. Justina Mpho Kepa in advance"

These
allegations are denied in detailed averments contained in Appellant's
replying affidavit. These read as follows:

"10.1 I deny that there were problems at the school concerning
me. I never had problems with the said school or any school
for that
matter. If the pro­blems deponent says I had with the school are
the damaging of school crops

. 5

and violent incidents referred to here­in, I wish to aver as
follows:-

10.2 It is not true that my cattle destroyed crops in the school
garden. There is not a single day when my cattle were impounded
as
alleged nor were there violent incidents as alleged. Deponent has
placed no iota of evidence to prove same, he does not even
quote a
single date on which the said incidents occurred as he gives the
impression that they happened on a continuous basis. In
any event my
husband is still alive and as the administrator of the joint estate
and head of the family he has overriding responsibility
for the said
cattle and children. Deponent does not even say that he ever talked
to him about the said events and creates the impression
that I did
whatever I liked in complete disregard of my husband, him as my
manager and teachers at the school till the Police had
to intervene.
If depo­nent's allegations were true, the police would have
obviously taken action against me, my husband and
my children and
they have never done so.

10.3 On a single occasion when my cattle were alleged to have damaged
the school crops this too turned out to be false. I

6

refer
this Honourable Court to the affidavit of MALISEMELO MOTSOANE which
deals fully with the said occasion.

AD
PARAGRAPHS 4.2 AND 4.3

10.4 I attended the meeting deponent refers to therein. All the
villagers were called to attend and a general request made that
they
take care that their stock did not rampage on the school garden. It
is not true, however, that a specific request was made
to the whole
village, as deponent suggests, that the school, its teachers and its
property be protected against myself, my children
and my cattle nor
that people were clamouring for my transfer."

The
disputed reflected above were not and cannot be resolved on the
papers. I am prepared for the purposes of the decision of these

matters to accept that Respondents had received complaints concerning
the issues which Respondents advert to in their opposing
affidavits.
I am also prepared to accept for present purposes (but for such
purposes only) that Respondents were bonet fide in
their belief that
the transfer of the Appellant was justified in view of the
circumstances and was in the interests of the school,
based

7

upon the
information Respondents had received. The ques­tions to be
answered however are, do the rules of natural justice apply
to these
proceedings; if so, did Respondents act fairly in coming to the
decision which they did and was the manner in which they
proceeded to
deal with the appel-lant in accordance with duty to observe natural
justice. These questions require an examination
of Respondents duties
and their conduct.

It is
common cause that the first time that Appellant learns that her
transfer from the post she has been occupy­ing for some
20 years
is when she is confronted on March 5, 1993 by the "manager"
of the school, one Mr. Sonti. with the news that
an application had
been made for Appellant's transfer to Setleketseng Anglican Church
Primary School. At the same time he presented
Appellant with a form —
annexure H.K.I to the application—and requested her to complete
same in order to facilitate
her transfer.

Applicant
then goes on to make the following uncontested averments which are
not contested. She says,

"On the same day the manager of my school wrote me a letter (a
fair copy and its translation are

8

attached hereto marked "MK2" and "MK3"
respective­ly) informing me that the School Management Committee

and Second Respondent had arrived at a decision that I should go to
Setleketseng Primary School on 9th March, 1993. This letter
enclosed
the transfer forms set out in the Eleventh Sched­ule to the
regulations."

There is
some dispute as to exactly what occurred between the 5th and the 9th
of March, 1993. It is however not relevant to the
questions posed
above. What is common cause is that on the 10th of March, 1993,
Appellant com­pleted the transfer forms referred
to above.
Annexure MK1, one of the forms concerned and which is one of the key
document to be considered in deciding this matter,
reads as follows:

"ELEVENTH
SCHEDULE

Rec. 11 (1)

PART 1

1. Teacher's
   full name and employment Number Mpho J. Kepa
   

   
   

2. Particulars
   of school or Grant Aidedpost from which a teacher Rankhelep

   
   

Primary

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is to be transferred ACL

3. 
   Particulars of school or Grant Aided
   

   
   

post to which a teacher Setleketseng Primary

is transferred ACL as from the ....... of April 93

3. 
   Reasons for proposed Re—organization
   

   
   

transfer Signature of Manager

(Revenue Stamps) Date Stamp

PART 11

I do not
consent to the proposed transfer for the following reasons

(1) No
substancial Reasons given by the Management Committee of being
transfered (2) The question of Re­organisation is obsolutely

uncomprehensible (3) In my knowledge the question of any proposed
transfer is negoti­able subject to agreement or disgreement

between the paries concern

JM Kepa

Signed

Signature
of Teacher

Date
Stamp

10- March
1993

PART 111

I
recommend to the proposed transfer for the following reasons:-

Despite
the teacher's resistence to the transfer, it is in order.

Signature
of Circuit Department Date Stamp (Ministry of Education)

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PART IV

I agree
to the proposed transfer for the following reasons:-

For the
good of both the school and the teachers.

For
proper administration and management within the parish.

Signed:

Signature
of Educational Secretary ..........

(ACL
Educational Secretariat Date Stamp)

Date
forward to Secretary Teaching Service Commission"

A fair
translation of the letter handed to Appellant annexure MK 2 dated the
5th of March 1993, reads as follows:

"St.
Barnabas

Rectory
Masite Mission

05-03-93

Mrs. Mpho
Kepa,

The
decision of the Management Committee and School Secre-tary is that
you should leave for Setleketseng on the 9th March, 1993.
Please
complete those transfer forms and send them to Mr Taaso.

Yours
faithfully,

Rev., Fr.
G.H. Sonti

(Chairman)"

(my
emphasis)

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This
documentation as well as a careful examination of the evidence
establishes beyond question that Appellant was never confronted
with
the true reason for her purported transfer. Annexure MK1, which
reflected as the reason for the transfer only one "magical"

word - •Re-organization". Not only did this fail to convey
with any clarity or content what motivated Appellant's transfer
and
was rightly regarded by her as incomprehensible, but it was not the
true reason. Respondent was in fact using "reorganization"

as a "screen" reason for obscuring the true motive i.e.
some form of misconduct on Appellant's part and the behaviour
of her
children and animals in relation to the school garden and the
tensions this had caused.

It should
also be noted, that the decision to transfer Appellant had already
been taken as per the letter from Mr. Sonti on the
5th of March 1993,
before she had filled in the form MK 1, and 2, that she was to leave
for her new post within four (4) days of
the date of the letter.
Moreover, the letter and the verbal intimation from the said Sonti,
was, according to Second Respondent,
untrue inasmuch as it purported
to indicate that her transfer had been approved by the latter
official at that time (March 5).Second

Respondent
states very clearly and very properly that "the Manager's

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(Mr.
Sonti) allegation (that he had already approved the transfer) is not
true."

I
summarize the conduct of the First Respondent which Appellant seeks
to impugn.

1. She
   is informed that she is to be transferred because of
   "re-organisation". This is untrue, the real reason is the
   misconduct referred to above,

   
   

2. She
   is given no opportunity prior to receipt of the letter MK 2 to
   respond to or to be heard in relation to either the true or
   the
   "screen" reason for her transfer. This, despite the fact
   that her response reflected in the form (MK 1) is in essence
   a plea
   to be heard. ("Transfer is negoti­able subject to agreement
   between the parties concerned")

   
   

3. She
   is falsely informed in the letter MK 2 that the Secretary (Second
   Respondent) had by the 5th of March and certainly before
   any form of
   hearing had taken place, already approved of her transfer.

   
   

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1. She
   is given four days in which to move to the new location to which she
   has been assigned after having been at her post for 20
   years.

   
   

A mere
recitation of these undisputed facts speak loudly of the manifest
unfairness with which Appellant was treated by her employer.
Mrs.
Kotelo for Respondent who argued Respondents' case with considerable
tenacity, was however ultimately constrained to concede
that the
process to which Appellant had been subjected was not fair. She was
heard to argue, somewhat forlornly that the audi alteram
partem rule
did not apply because Appellant was being transferred and not
dismissed, and that her failure to comply with the directive
to move
was a valid ground upon which she could be dismissed. Directions of
this kind- she submitted - should for reasons of good
order and
discipline not be ignored simply because an affected party is
subjec­tively of the view that the decision is unjust
and
invalid.

These
contentions cannot on the facts of this case be upheld. In the first
case Appellant's purported transfer was falsely represented
to her as
being motivated by a need to reorganize. Secondly, she was
untruthfully informed that the sanctioning authority had in
fact
already approved her

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transfer.
Thirdly, the transfer in this case was prima. facie a matter that
could cause her grave prejudice and almost undoubtedly
would have
done so in the circumstances described above.

Without
laying down general rules, the facts cited above in my view made it
imperative for Respondents to have acted in accordance
with natural
justice. See in this regard Ngubane v. Minister of Education and
Culture Ulundi and Another 1985 (3) SA 160 (N).

The
spurious reasons for transfer, the falsity of the information
conveyed to the Appellant and the unreasonable time given to her
to
comply with the unauthorised directive were all factors that fatally
flawed the "decision" conveyed to her.

In these
circumstances and on the facts peculiar to this case Appellant's
conduct in refusing to obey the directive to be transferred,
with all
the prejudicial consequences demonstrable on the facts set out above,
was not in any way unreasonable. Nor can her refusal
be relied upon
by Respondents to justify her subsequent dismissal. The unfairness
with which the proceedings concerning her

15

transfer
were conducted is a taint which permeates and impugns all the
subsequent actions of the Respondents including Appellant's
purported
dismissal.

For these
reasons the appeal succeeds with costs. The order discharging the
rule nisi is set aside. In place thereof the following
order is
substituted:

"The
rule nisi is confirmed with costs."

J.H.
STEYN

JUDGE OF
APPEAL

I agree

I.
MAHOMED

PRESIDENT
OF THE COURT OF APPEAL

I agree

JUDGE OF
APPEAL

Delivered
at Maseru this 28TH day of July, 1995.